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2021 DIGILAW 3074 (MAD)

Kanagammal v. Shree Vedika

2021-11-11

R.THARANI

body2021
JUDGMENT : R. THARANI, J. Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to enhance the award amount in M.C.O.P. No. 351 of 2012 on the file of the Motor Accident Claims Tribunal, (Chief Judicial Magistrate Court), Tirunelveli dated 20.12.2013. 1. This Civil Miscellaneous Appeal has been filed against the award passed in M.C.O.P. No. 351 of 2012 dated 20.12.2013, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Tirunelveli. 2. The appellant herein is the claimant and the respondents herein are the respondents in the claim petition. The appellant herein has filed a claim petition in M.C.O.P. No. 351 of 2012, claiming compensation for the injuries sustained by the claimant, in an accident that took place on 31.05.2012. The Tribunal has awarded a sum of Rs. 2,00,222/- (Rupees Two Lakhs Two Hundred and Twenty Two only) as compensation. Against which, the appellant has preferred this appeal. 3. Brief substance of the claim petition in M.C.O.P. No. 351 of 2012 is as follows: The petitioner was aged about 44 years at the time of accident and she was working as a Clerk in a Match Industry and was earning a sum of Rs. 6,500/- (Rupees Six Thousand and Five Hundred only) per month. On 31.05.2012 at 07.30 a.m. the petitioner was travelling in a bus bearing Registration No. TN-67-K-5385 that belong to the first respondent insured with the second respondent along the Tenkasi - Madurai Highways. The driver of the bus drove the bus in a rash and negligent manner and dashed against the rear side of the lorry bearing Registration No. TN-28-AE-5688 that belong to the third respondent insured with the fourth respondent. The petitioner sustained injuries and took treatment at the Government Hospital, Kadayanallur and then she was admitted in the Government Hospital, Tenkasi and he took treatment as in patient for a period of ten days. He claimed a sum of Rs. 5,00,000/- (Rupees Five Lakhs only) as compensation. 4. Brief substance of the counter filed by the second respondent therein is as follows: The manner of the accident as narrated in the petition is wrong. The first respondent is not responsible for the accident. The accident took place due to the rash and negligent driving of the third respondent lorry driver. 5,00,000/- (Rupees Five Lakhs only) as compensation. 4. Brief substance of the counter filed by the second respondent therein is as follows: The manner of the accident as narrated in the petition is wrong. The first respondent is not responsible for the accident. The accident took place due to the rash and negligent driving of the third respondent lorry driver. The petitioner has to prove her age, profession, income, manner of the accident, injuries, treatment particulars and the expenses for treatment. The claim is excessive. 5. Brief substance of the counter filed by the fourth respondent therein is as follows: The first respondent bus driver is responsible for the accident. FIR was registered only against the bus driver. The petitioner has to prove the age, income, profession, manner of the accident, injuries, treatment particulars and the expenses for the treatment. The claim under various heads is excessive. This respondent is only a formal party and the petition has to be dismissed as against the fourth respondent. 6. The respondents 1 and 3 were set ex-parte. On the side of the claimant, three witnesses were examined and 15 documents were marked. On the side of the respondents, no witnesses was examined and no document was marked. After trial, the Tribunal has awarded a sum of Rs. 2,00,222/- (Rupees Two Lakhs Two Hundred and Twenty Two only) as compensation to be paid by the second respondent therein. Against which, the appellant has preferred this Civil Miscellaneous Appeal for enhancement of the award. 7. On the side of the appellant, it is stated that the Tribunal ought to have adopted multiplier method for calculating the loss of income. Though the disability is 45% the functional disability is 100%. The Tribunal ought to have awarded Rs. 75,000/- (Rupees Seventy Five Thousand only) towards loss of amenities and Rs. 1,05,000/- (Rupees One Lakh and Five Thousand only) towards permanent disability and the Tribunal awarded Rs. 5,000/- (Rupees Five Thousand only) towards pain and suffering, Rs. 10,000/- (Rupees Ten Thousand only) towards transportation expenses, Rs. 10,000/- (Rupees Ten Thousand only) towards extra nourishment and Rs. 10,000/- (Rupees Ten Thousand only) towards attendant charges. The appellant restricted the value of the appeal as Rs. 2,00,000/- (Rupees Two Lakhs only). 8. On the side of the appellant, it is stated that the left knee was fractured. 10,000/- (Rupees Ten Thousand only) towards transportation expenses, Rs. 10,000/- (Rupees Ten Thousand only) towards extra nourishment and Rs. 10,000/- (Rupees Ten Thousand only) towards attendant charges. The appellant restricted the value of the appeal as Rs. 2,00,000/- (Rupees Two Lakhs only). 8. On the side of the appellant, it is stated that the left knee was fractured. The appellant was not able to do even the household works and she has undergone surgeries at Government Hospital, Kadayanallur and then she was admitted in the Government Hospital, Tenkasi. Again she has undergone a surgery in K.P. Hospital, Tenkasi. She has undergone another surgery in Sushruthah Hospital, Nagercoil. Bone grafting was done. The appellant was not completely cured. The appellant has undergone treatment for five months and took physiotherapy for another period of five months. She was unable to do any work. 9. On the side of the second respondent, it is stated that there was no document to prove that the appellant was working as a clerk in a Match industry and was earning Rs. 6,500/- (Rupees Six Thousand and Five Hundred only) per month. The income fixed by the Tribunal is reasonable. The employment of the appellant was not proved. The owner of the factory was not examined. There is no necessity to apply multiplier method. The notional income fixed by the Tribunal is reasonable. The disability is only 35%. For a single fracture, the award and the claim of the appellant is excessive. From the evidence of PW-1 and Ex.P1, the Tribunal has fixed the liability on the second respondent. There is no cross objection filed by the second respondent and hence, it is decided that the liability fixed by the Tribunal is reasonable. 10. The appellant has approached this Court for enhancement of compensation. The appellant has undergone treatment as ‘inpatient’ in Tirunelveli Medical College Hospital from 31.05.2012 till 25.06.2012. The case history was marked as Ex.P2. She undergone surgery on 06.06.2013 and then she was admitted in Tenkasi K.P. Hospital as ‘in patient’ from 17.10.2012 till 22.10.2012. The steel plate fixed by the Government Hospital was removed by way of surgery. Again the appellant was admitted in Sushruthah Hospital, Nagercoil from 01.10.2013 till 08.10.2013. She has undergone surgery on 02.10.2013. PW-3 doctor has assessed the disability as 35% and the disability certificate was marked as Ex.P13. The steel plate fixed by the Government Hospital was removed by way of surgery. Again the appellant was admitted in Sushruthah Hospital, Nagercoil from 01.10.2013 till 08.10.2013. She has undergone surgery on 02.10.2013. PW-3 doctor has assessed the disability as 35% and the disability certificate was marked as Ex.P13. The discharge summary and the case sheet were marked as Ex.P5 and Ex.P15. There is no evidence on the side of the appellant to prove that the appellant has lost her carrier due to the accident. The job of the appellant as stated in the claim petition is Clerk. There cannot be any functional disability restraining the appellant to continue the same work. Hence, it is decided that for 35% partial permanent disability, the appellant is entitled to Rs. 1,05,000/- (Rupees One Lakh and Five Thousand only). It is seen that the appellant has undergone three surgeries and was admitted as ‘in patient’ three times. Hence, for the period of treatment and for the period of rehabilitation, the appellant is entitled to Rs. 39,000/- (Rupees Thirty Nine Thousand only) towards temporary loss of income. The appellant is entitled to Rs. 5,000/- (Rupees Five Thousand only) towards transportation expenses, Rs. 10,000/- (Rupees Ten Thousand only) towards extra nourishment and Rs. 10,000/- (Rupees Ten Thousand only) towards attendant charges. A sum of Rs. 1,25,000/- (Rupees One Lakh and Twenty Five Thousand only) towards medical expenses and Rs. 20,000/- (Rupees Twenty Thousand only) towards pain and suffering are awarded. In total, a sum of Rs. 3,14,000/- (Rupees Three Lakhs and Fourteen Thousand only) is awarded as compensation. 11. Hence, it is decided that the appellant is entitled to a sum of Rs. 3,14,000/- (Rupees Three Lakhs and Fourteen Thousand only) as compensation with interest at the rate of 7.5% from the date of the claim petition till the date of realization. 12. The second respondent therein is directed to deposit Rs. 3,14,000/- (Rupees Three Lakhs and Fourteen Thousand only) with 7.5% interest from date of the claim petition till the date of realization with cost and the amount has to be deposited within a period of 8 weeks from the date of receipt of copy of this order. On such deposit, the appellant is permitted to withdraw the award amount with interest after deducting any amount received by her earlier. On such deposit, the appellant is permitted to withdraw the award amount with interest after deducting any amount received by her earlier. The claimant is not entitled for interest for the default period, if there is any. The appellant is directed to pay extra Court fee, if any. In the result, this Civil Miscellaneous Appeal is partly allowed. No Costs.